Madras High Court
Mohammed Assan vs / on 20 January, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
2025:MHC:218
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.(MD)No.8886 of 2024
Mohammed Assan ... Petitioner
/Vs./
The Joint Sub Registrar No.II,
Sub Registrar Office,
Tenkasi,Tenkasi District. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus to calling for the records
relating to the impugned refusal check slip in Refusal Number RFL/Joint
Sub-Registrar No.II,Tenkasi/41/2024, dated 26.3.2024 issued by the
respondent and quash the same as illegal and unconstitutional and
consequently to direct the respondent to forthwith register and release
the deed of relinquishment, dated 26.3.2024 presented by the Petitioner,
within the time fixed by this Court.
For Petitioner : Mr.S.Balamurugan
For Respondent : Mr.S.P.Maharajan
Special Government Pleader
1/19
https://www.mhc.tn.gov.in/judis
ORDER
This writ petition has been filed challenging the impugned refusal
check slip in Refusal Number RFL/Joint Sub-Registrar
No.II,Tenkasi/41/2024, dated 26.3.2024 issued by the respondent and
quash the same as illegal and unconstitutional and consequently to direct
the respondent to forthwith register and release the deed of
relinquishment, dated 26.3.2024 presented by the Petitioner, within the
time fixed by this Court.
2.Heard the learned counsel on either side and perused the
materials placed before this Court.
3. The petitioner and his brother K.Mubarak @ Abdul Mubarak
jointly purchased the landed property in New Aya Nanaja in S.No.1052/4
admeasuring 36 cents and New Ayan Nanja in S.No.1053/2 admeasuring
7 cents totally 43 cents situate at Tenkasi Village through registered sale
deed vide document No.862 of 2000, dated 24.4.2000 and they have
equal share in the said land.While so the Petitioner had executed a deed
of relinquishment in favour of his broher K.Mubarak @ Abdul Mubarak
2/19
https://www.mhc.tn.gov.in/judis
and presented the same for registration on 26.3.2024 stating that the
original document was not produced and name of the claimant
K.Mubarak differ with the name found in the previous document and
directed to produce the necessary certificate to prove both K.Mubarak
and K.Mubareak @ Abdul Mubarak are one and the same. Hence the
Writ Petition is filed for the aforesaid relief.
4.The learned Special Government Pleader appearing for the
respondents submitted that the Hon'ble Division Bench of this Court in
W.A.No.271 of 2024 dated 25.03.2024 held that the first proviso to Rule
55 A of the Tamil Nadu Registration Rules, 2000 is not at all declared as
ultra-vires by this Court. The provisos to Rule 55 A are intact in Rule
Books and therefore, it is to be complied scrupulously, whenever
documents are presented for registration. Further, the second and third
provisos to Rule 55A of the Registration Rules enumerates procedures to
be followed in the event of non-availability of revenue records to be
produced for registration. The presentant of a document is bound to
comply with the conditions stipulated in Rule 55A for registering a
document under the Registration Act.
3/19
https://www.mhc.tn.gov.in/judis
5. In the case of Federal Bank v. Sub-Registrar reported in 2023
2 CTC 289, it is held that it is not open to the Inspector General of
Registration to take a contra view and notify a subordinate legislation the
effect of which is to completely render nugatory to the interpretation
made by this Court. Ex-facie, the first proviso to Rule 55-A (i) is clearly
illegal and is vitiated by a clear abuse of power.
6. In the case of N.Ramayee vs. the Sub Registrar, in W.P.No.674
of 2020 dated 05.11.2020, the Hon'ble Division Bench of this Court held
as follows:-
“29. In the light of the above when we deal with the
various provisions of the Transfer of Property Act the
question arises as to whether the transfer is restricted to
one time in respect of the immovable property, unless the
previous transfer or any agreement is set aside in the court
of law, and other transfer is permissible? The answer is
absolutely “No” for the following reasons:
The property of any kind may be transferred, except
as otherwise provided by the transfer of property Act or by
any other law for the time being, as provided in Section 6 of
the Transfer of property Act.
30. Every person competent to contract and entitled
to transferable property, or authorised to dispose of
transferable property not his own, is competent to transfer
4/19
https://www.mhc.tn.gov.in/judis
such property either wholly or in part, and either absolutely
or conditionally, in the circumstances, to the extent and in
the manner allowed and prescribed by any law for the time
being in force, as per Section 7 of the Transfer of Property
Act. The reading of the above section makes it very clear
that even a person not entitled transferable property is
competent to transfer such property when he was
authorised to dispose of such property.
31. Section 41 of the Transfer of Property Act deals
with the power of the ostensible owner to effect the transfer
of the property with consent, express or implied of the real
owner.
32. From the principle underlined in the Section 41
of the Transfer of Property Act is that the ostensible owner
of the property, with the consent express or implied and
representing himself as owner of the property though he is
not having the title, can deal with the property. Similarly,
Section 42 of the T.P. Act deals with the transfer by a
person having authority to revoke the former transfer. When
a person transfers any immovable property reserving power
to revoke the transfer, and subsequently transfers the
property for consideration to another transferee, such
transfer operates in favour of such transferee subject to any
condition attached to the exercise of the power as a
revocation of the former transfer to the extent of the power.
33. Similarly section 43 of Transfer of Property Act
deals with transfer by unauthorized person who
5/19
https://www.mhc.tn.gov.in/judis
subsequently acquires interest in the property transferred.
The above section makes it very clear that even a person
who has no title over the property purports to transfer to
another by deed and when he subsequently acquires any
interest in the property, sufficient to satisfy the transfer, the
title would pass to the transferee without any further act on
the part of the transferrer, provided the transferee has not
rescinded the transfer and opts for such effectuation. The
above principle also makes it very clear even a transfer by
unauthorized person is not prohibited. Only the validity of
the title would be subject to his acquiring subsequent
interest in the property.
34. Section 48 of the Transfer of Property Act deals
with priority of rights created by transfer, which reads as
follows:
“48. Where a person purports to create by
transfer at different times rights in or over the
same immoveable property, and such rights cannot
all exist or be exercised to their full extent
together, each later created right shall, in the
absence of a special contract or reservation
binding the earlier transferees, be subject to the
rights previously created.”
35. The above section determines the priority when
there are successive transfers, where the person creates
transfer at different times right in or over the same
immovable property, such rights cannot all exist or be
exercised to their full extent together, each later created
right shall, in the absence of a special contract or
6/19
https://www.mhc.tn.gov.in/judis
reservation bind the earlier transferee and be subject to the
rights previously created.
36. Reading of the above section makes it clear that
there is no bar for successive transfers. However, the rights
in later transfer shall always be subject to the rights
already created in the earlier transfer.
37. It is also pertinent to note that even if transfer is
made during a pending suit, such transfer is not void but is
subject to the result of the suit. Section 53 of the Transfer of
Property Act, deals with fraudulent transfer. Even such
fraudulent transfer is made with intent to defeat or delay
the creditors of the transferrer shall be voidable at the
option of any creditor so defeated or delayed. Even in such
cases the rights of transferee in good faith and for
consideration is protected.
38. Section 56 of the Transfer of Property Act deals
with marshalling by subsequent purchaser. The above
provision also makes it clear that when the owner of two or
more properties mortgages them to one person and then
sells one or more of the properties to another person, the
buyer is in the absence of a contract to the contrary,
entitled to have the mortgage-debt satisfied out of the
property or properties not sold to him, so far as the same
will extend, but not so as to prejudice the rights of the
mortgagee or persons claiming under him or of any other
person who has for consideration acquired an interest in
any of the properties. The above provision also makes it
7/19
https://www.mhc.tn.gov.in/judis
clear that though there were mortgages already created
there is no bar for subsequent transfer of the property. But
subsequent transfer is subject to the mortgage earlier
created.
39. Section 57 of the Transfer of Property Act deals
with the Provision by Court for encumbrances and sale
freed there from. The Section also makes it clear that even
the properties already encumbered can be brought under
court sale and the encumbrance can be freed after issuance
of notice to the encumberer.
40. It is also relevant to note that even a mortgage is
a transfer of an interest in specific immovable property for
the purpose of securing the payment of money advanced or
to be advanced by way of loan, an existing or future debt,
or the performance of an engagement which may give rise
to a pecuniary liability. Therefore, it cannot be said that
once the encumbrance is made by creating a mortgage, the
mortgagor is totally prohibited from effecting any further
transfer. In fact if any such transfer is made, it is always
subject to the mortgage alone. If the analogy is drawn from
the judgment of the single judge in W.P. No.33601 of 2019
[Venkattamma v. The Sub-Registrar] that agreement once
registered there cannot be any subsequent settlement deed
is accepted, such situation even may lead to the contention
that even where a simple mortgage is created, the
mortgagor cannot transfer the property for any other
purpose even for a lease, even though lease is just transfer
8/19
https://www.mhc.tn.gov.in/judis
of right to enjoy the property. The judgment of the learned
single Judge in W.P. No. 33601 of 2019 [Venkattamma v.
The Sub-Registrar] holding that unless there is declaration
declaring the agreement for sale is null and void is
obtained from civil court no further transfer could be
registered, which is, in our view, not according to law. It is
also to be noted that in the above case only agreement for
sale was registered. It is relevant to extract Section 54 of
the Transfer of Property Act.”
14.a. Dealing with the case of transfers made after the
execution of a sale agreement the Division Bench observed:
“Section 54 of T.P. Act: “Sale” defined.— “Sale”
is a transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised.
Sale how made.—
3 Such transfer, in the case of tangible immovable
property of the value of one hundred rupees and
upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument. 1In the case of tangible immovable
property of a value less than one hundred rupees,
such transfer may be made either by a registered
instrument or by delivery of the property. Delivery
of tangible immovable property takes place when
the seller places the buyer, or such person as he
directs, in possession of the property. Contract for
sale.—A contract for the sale of immovable
property is a contract that a sale of such property
shall take place on terms settled between the
parties. It does not, of itself, create any interest in
or charge on such property.”
41. The contract for the sale of immovable property is a
contract that a sale of such property shall take place on
9/19
https://www.mhc.tn.gov.in/judis
terms settled between the parties. It does not, of itself,
create any interest or charge on such property. The
agreement of sale is merely a document creating right to
obtain a document of sale on fulfilment of terms and
conditions specified therein and it is only capable of
enforcement in the event of breach of contract by the other
side. Even to enforce such agreement for specific
performance, the agreement holder has to establish not
only the contract but other grounds viz., ready and
willingness on his part to get a decree of specific
pereformance provided the suit is filed within time.
42. In Narandas Karsondas v. S.K. Kamtam [(1977)
3 SCC 247 : AIR 1977 SC 774] the Honourable Supreme
Court also considered the nature of the right created on the
immoveable property by a contract for sale. It has been
stated that contract of sale in view of section 24 of T.P. Act
does not of itself create any interest in or charge on the
property. The personal obligation created by a contract of
sale (as recognized in Section 3 of the Specific Relief Act
and section 91 of the Trust Act is described in Section 40 of
the T.P. Act) as an obligation arising out of contract. An
annexure to the ownership of the property, but not
amounting to interest or easement therein.
43. Section 19(b) of Specific Relief Act also protects
the subsequent transferee for value and for consideration in
good faith without notice of the original contract. Even if a
person has no title to the property has entered into a
10/19
https://www.mhc.tn.gov.in/judis
contract for sale, the transferee can seek for specific
performance under section 13 of the Specific Relief Act.
44. From a combined reading of various provisions
of the Transfer of Property Act as referred above, we are of
the view that there is no bar forcreating subsequent transfer
of the immovable property. Effect of the subsequent transfer
is always subject to the earlier transfer created by the
transferrer of the immovable property. Therefore, it cannot
be said that since the agreement for sale is registered the
owner viz., the Vendor has no right to execute any
document. In Venkatamma's case [W.P. No. 33601 of 2019]
in fact settlement deed has been presented for registration
by the Vendor after three years of the so called contract.
Merely on the basis of the agreement for sale, the registrar
refused to register the document which is against the very
substantive law of the country. If such approach is accepted
a situation may arise in every loan transaction if some
contract is registered, merely because it shown in the
encumbrance as a registered agreement, the owners of the
property would be prohibited from dealing with the
property as long as the encumbrance finds place in the
encumbrance certificate. Such situation in fact would lead
to deprive the right of the owner of the property to deal with
the property which is a constitutional right.”
7. Therefore, the effect of the first proviso is clearly an arbitrary
11/19
https://www.mhc.tn.gov.in/judis
exercise of power aimed at setting at naught the above declaration of law
by the Division Bench of this Court.
8. Unfortunately, it was not brought to the knowledge of the
Hon'ble Division Bench of this Court and as such, the Hon'ble Division
Bench had no opportunity to deal with the above issue. In view of the
above, this Court could not able to follow the Hon'ble Division Bench of
this Court since the Hon'ble Division Bench of this Court dealt with the
issue in the above said manner. It is also endorsed by the learned Single
Judge of this Court in the case of Subramani vs. The Sub-Registrar in
WP No.11056 of 2024 dated 26.04.2024.
“28. It is also pertinent to note that even if transfer is
made during a pending suit, such transfer is not void but is
subject to the result of the suit. Section 53 of the Transfer of
Property Act, deals with fraudulent transfer. Even such
fraudulent transfer is made with intent to defeat or delay the
creditors of the transferor shall be voidable at the option of
any creditor so defeated or delayed. Even in such cases the
rights of transferee in good faith and for consideration is
protected.”
12/19
https://www.mhc.tn.gov.in/judis
9. This issue has also been dealt with by the Hon'ble Division
Bench of this Court recently in WA.No.1160 of 2024 by judgment dated
27.09.2024. The relevant portion of the judgment is extracted
hereunder:-
“7. The law relating to transfer of immovable property
is governed by the substantial enactment namely, The
Transfer of Property Act, 1882. The right to hold property and
the right to be not deprived of property without reasonable
compensation is a constitutional right ensured under Article
300A of the Constitution of India. Being a constitutional right,
it is one step superior to even the fundamental rights, as there
cannot be a reasonable restriction on the said right and no
one can be deprived of the property without reasonable
compensation. The right to hold the property also takes in its
fold the right to deal with the property. No doubt, the second
proviso to rule 55-A of the Tamil Nadu Registration Rules
mandates that the original of the antecedent document should
be produced to enable registration of a subsequent
instrument. Of course, a way-out is provided namely, the
production of non traceability certificate from the police
department. We should also be conscious of the fact that any
certificate from any Government department, as of today,
comes only at a price for an ordinary citizen. An elaborate
procedure has also been fixed for issuance of non traceability
certificate. We have come across several instances where,
13/19
https://www.mhc.tn.gov.in/judis
because of the high pricing of and the complicated procedure
involved in obtaining a non traceability certificate, instances
of people obtaining non traceability certificate from the
neighboring States has increased.
8. The fundamental principle of law relating to transfer
of immovable property is caveat emptor. A buyer of the
property is required to be careful in not purchasing certain
properties which are already encumbered or from person who
does not have title. Even if a person sells a property that does
not belong to him, there is no provision in the Registration
Act, 1908, to enable the Registrar to refuse registration
except Section 22-A and Section 22-B, which have been
introduced recently in the year 2022 by the State Legislature
insofar as Tamil Nadu is concerned. Even Section 22-A and
Section 22-B do not authorise refusal of registration on the
ground that the original of the prior's title deed has not been
produced. We are unable to resist observing that Rule 55-A
has been stealthily introduced as a subordinate legislation
only to enable Registrars refuse to register instruments
indiscriminately. Neither Section 22-A nor Section 22-B
authorise a Registrar to refuse to register instruments on the
grounds specified under Rule 55-A. No doubt, Mr.Ramanlaal
falls back on the power of Superintendence conferred on the
Chief Controlling Revenue Authority and the District
Registrars under Section 68 of the Registration Act, 1908.
Section 68 reads as follows:
“68. Power of Registrar to superintend and
14/19
https://www.mhc.tn.gov.in/judis
control Sub-Registrars.
(1) Every Sub-Registrar shall perform the duties of
his office under the superintendence and control of
the Registrar in whose district the office of such Sub-
Registrar is situate.
(2) Every Registrar shall have authority to issue
(whether on complaint or otherwise) any order
consistent with this Act which he considers necessary
in respect of any act or omission of any Sub-Registrar
subordinate to him or in respect of the rectification of
any error regarding the book or the office in which
any document has been registered.''
9. The power conferred under Section 68 of the
Registration Act, 1908, is only a supervisory jurisdiction and
it invests the power in the Registrars to issue any order
consistent with the Act. As we already observed, the provision
of Section 55-A inserted in the rules has no statutory
authority. Section 69 of the Registration Act 1908, enables the
Inspector General to make rules providing for the matters
that are set out in Clauses (a) to (h). The provision namely,
Section 69 further provides that the rule so framed shall be
consistent with the provisions of the Act. Therefore, the rules
made by the Inspector General of Registration exercising the
power under Section 69 cannot override the provisions of the
Act. Rule 162 of the Registration Rules prescribes the
circumstances under which a Registrar can refuse to register
an instrument. Clause 20 has been added to Rule 162 to
enable the Registrar to refuse registration, if the presentant
does not produce the original deed or record specified in Rule
55A. We do not propose to delve into the validity or otherwise
15/19
https://www.mhc.tn.gov.in/judis
of the rule, but we must record that prima facie, the rule
overreaches the legislation and it is beyond the powers of the
Inspector General of Registration under Section 69.
10. Adverting to the facts on hand, the document that is
sought to be registered is a release deed executed by the sister
in favour of the brother. The document recites that the
property belonged to the father. The parties are not strangers
to each other. They have produced registration copies of the
antecedent documents which are registered in the very same
office. Unless the Registrar has a doubt regarding the
genuineness of the copies issued by his own office, insistence
on production of originals is a superfluous exercise. As we
had already stated, it is a common knowledge and accepted
phenomena today that one cannot secure a certificate from a
Government office without the price. In such situation,
driving executant of documents to obtain a non traceability
certificate in case of lost document in every case, will result
only in encouraging under hand dealings. When certified
copies have been produced and it is not impossible for the
Sub Registrar to have it verified with the original record that
is available in his own office, insisting upon a non
traceability certificate appears to be rather a wasteful
exercise. Even in Punithavathy's case referred to supra, we
have observed that the Registrars will not refuse registration
particularly, when the parties to the documents are relatives
and they take the risk of obtaining the document without
examining the title. The copies of the documents have already
16/19
https://www.mhc.tn.gov.in/judis
been produced. The Sub Registrar could have verified the
same with the original records in his office and register the
instrument without dogmatically refusing registration. We,
therefore, do not find any substance in the argument of
Mr.Ramanlaal, learned Additional Advocate General. We,
therefore, set aside the order of the learned Single Judge as
well as the impugned check slip. We direct the Sub Registrar,
Rasipuram, to register the release deed. We permit the
appellant to re-present the release deed within four weeks
from today and upon such re-presentation, the Sub Registrar,
Rasipuram, will register the instrument without insisting on
production of originals within 15 days from the date of
presentation.”
10.Insofar as the difference in the name of the vendor is
concerned, the Petitioner has produced the gazette notification to that
extent that the vendor name is K.Mubarak @ Abdul Mubarak.
11. In view of the above, the respondent cannot insist the party to
produce the original parent document while registration. Therefore, the
impugned refusal check slip cannot be sustained and is liable to be
quashed. Accordingly, the impugned refusal check slip dated 26.3.2024
is hereby quashed. The petitioner is directed to re-present the deed of
17/19
https://www.mhc.tn.gov.in/judis
relinquishment within a period of one week from the date of receipt of a
copy of this order. On receipt of the same, the respondent is directed to
register the deed of relinquishment presented by the petitioner without
insisting upon production of the parent deed in respect of the subject
property and taking into account the gazette notification in respect of
difference in the name of the vendor, within a period of one week
thereafter and release the same forthwith, if it is otherwise in order.
Accordingly, this writ petition is allowed. No costs.
21.01.2025
Index : Yes / No
NCC : Yes / No
NCS : Yes/No
vsn
TO:-
The Joint Sub Registrar No.II,
Sub Registrar Office,
Tenkasi,Tenkasi District.
18/19
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN, J.
vsn
Order made in
Dated:
21.01.2025
https://www.mhc.tn.gov.in/judis
